Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bensaid Nakach, is a Moroccan
national, who was born in 1944. At the time of the events complained
of, he was detained in a secure institution, the Forensic Psychiatric
Centre “Veldzicht” in Balkbrug, Netherlands (hereinafter “Veldzicht”);
in July 2002 he was transferred to the secure institution “De Kijvelanden”
in Poortugaal, near Rotterdam, Netherlands. He is represented before
the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam. The respondent
Government are represented by Mr R.A.A. Böcker and Ms H.L. Janssen
of the Netherlands Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

On 7 February 1994 the applicant hit his wife,
Mrs K., on the head, the shoulders and the back with the blunt edge
of a meat cleaver, choked her and kicked her in the face. Mrs K. was
injured but survived.

The applicant was arrested and subjected to psychiatric
examination by State-appointed psychiatrists.

On 10 October 1994 the Breda Regional Court convicted
the applicant of attempted manslaughter. In the light of a psychiatric
report which found the applicant's mental powers to be deficient and
the chance of his re-offending to be high, it sentenced him to one year's
imprisonment and ordered his placement at the Government's disposal
(terbeschikkingstelling
van de regering) with confinement in a secure institution.

The applicant appealed.

A report was prepared by a counter-expert, Dr
E., according to which the act with which the applicant was charged
could be explained with reference to the applicant's cultural background.
Dr E. had published the results of research relevant to such problems.

On 10 October 1995 the 's-Hertogenbosch Court
of Appeal upheld the judgment of the Regional Court. In so doing it
had regard to, among other things, the report of the State-appointed
psychiatrists.

The applicant lodged an appeal on points of law
(cassatie)
with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996.

The time which the applicant had spent in detention
on remand counting towards the sentence, the order placing the applicant
at the Government's disposal therefore went into force on that date.

The applicant was kept detained in a remand centre
(huis van
bewaring) pending placement in a secure institution.

The placement order was prolonged for an additional
two years in September 1998.

On 10 May 1999 the applicant was transferred
to the secure institution “Veldzicht” in Balkbrug. The competent
authority, recognising that the applicant had had to wait for a considerable
time to be moved to a setting appropriate to his established mental
condition, awarded him financial compensation for any harm caused thereby
on 19 October 1999.

On 29 September 2000 the Breda Regional Court
extended the applicant's placement order for a further two years.

The applicant appealed to the Arnhem Court of
Appeal (gerechtshof).

A hearing was held on 9 April 2001. The Court
of Appeal considered a psychiatric report submitted by Veldzicht, according
to which the applicant was excessively suspicious; suffered from delusions
and was lacking in introspective, rational, social and empathic powers;
and refused treatment. It also heard expert evidence given by one Dr.
D., a psychologist who was a member of the Veldzicht staff, who stated
that the applicant was unco-operative, refused medication and had tried
to escape from the institution by taking someone hostage.

The applicant's counsel denied that the applicant
posed any danger justifying his continued detention. He asked for the
applicant to be examined by a psychiatrist of Moroccan origin who had
no ties with Veldzicht. He submitted that there was such a psychiatrist
in The Hague who was a recognised forensic expert.

The Court of Appeal gave its decision on 23 April
2001. The summaries of the Veldzicht report and of the statements of
Dr. D. and the applicant's counsel cover about a page and a half.

It found, based on the Veldzicht report and the
statement of Dr. D., that the applicant's continued placement at the
Government's disposal remained necessary in the interest of public safety.
It refused to hear further evidence, expert or otherwise, on the ground
that there was no apparent need for any, and the information available
on which to base a decision was enough.

On 28 June 2001 the applicant's counsel wrote
to the Court of Appeal asking for a copy of the official record of the
hearing of 9 April.

A reply dated 11 July 2001, on stationery bearing
the letterhead of the vice-president of the Court of Appeal in charge
of criminal cases (the signature is illegible), contains the following
passage:

“In reply to your request of 28 June last I
must inform you that no official records are usually made of hearings
of the criminal division concerning prolongations of placements at the
Government's disposal. The reason is that no ordinary remedy lies against
the decisions concerned and the workload of the Court of Appeal does
not admit of structural activities 'just to fill the archives' (voor het archief).
For that reason, also, the decisions in question tend to render the
statements made more extensively than would be the case if in fact an
official record were prepared (in addition).”

B. Relevant domestic law

1. The Criminal Code

A person who has been found guilty of certain
serious crimes and who, at the time of committing the offence, suffered
from a mental deficiency or derangement may be placed at the Government's
disposal if required in the interests of the safety of others or, more
generally, in the interests of the safety of persons or goods. Such
a measure, which is not considered a punishment, may be imposed instead
of or together with a prison sentence (Article 37a §§ 1 and 2 of the
Criminal Code). The sentencing court may further decide that the person
concerned shall be confined in a secure institution in the interests
of public safety (Article 37b § 1).

According to Article 38d of the Criminal Code
the person concerned shall be placed at the disposal of the Government
for an initial period of two years which may be prolonged, at the request
of the public prosecutor, for a further period of one or two years.
The period of placement cannot be extended beyond a total of four years
unless the crime committed by the person concerned was a crime of violence
committed against, or causing danger to, one or more persons, or such
further extension is necessary for the protection of other persons (Article
38e).

2. The Code of Criminal Procedure

A hearing shall be held in public before the
review chamber (raadkamer) of the Regional Court (Article 509m § 1). Article
25 provides that an official record of the hearing shall be drawn up
by the registrar (griffier).

If the person placed at the Government's disposal
is confined in a secure institution, the request of the public prosecutor
for the prolongation of such placement shall be accompanied by a recent
advisory opinion of the head of the institution concerned, which shall
be reasoned and signed, and a copy of the notes kept concerning the
person's physical and mental health (Article 509o § 2). If a prolongation
is sought which will result in the total duration of the placement exceeding
six years or a multiple of six years, the public prosecutor shall also
submit a recent advisory opinion, which shall be reasoned and signed,
of two behavioural experts, one of whom shall be a psychiatrist, but
neither of whom shall be connected to the institution where the person
concerned is confined, or else one such advisory opinion from each expert
(Article 509o § 4).

An appeal against the decision of the Regional
Court lies to the Arnhem Court of Appeal (Article 509v § 1).

The Court of Appeal's decision, which shall be
reasoned, is final (Article 509x § 2).

COMPLAINTS

The applicant complained under Article 5 § 1
of the Convention of a failure to follow a procedure prescribed by law
in that no official record was drawn up of the hearing before the Arnhem
Court of Appeal.

He also complained under Article 5 §§ 1 (e)
and 4 and Article 6 § 3 (d) of the Convention about the failure to
appoint a counter-expert of his choosing.

THE LAW

The applicant complains
of various breaches of the Convention, involving Article 5 §§ 1 (e)
and 4 and Article 6 § 3 (d).

Article 5 §§ 1 and 4, in relevant part, provide
as follows:

“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

...

(e) the lawful detention of persons for the prevention
of the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;

...

4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful. ...”

Article 6 § 3 (d) provides as follows:

“1. In the determination of his civil rights
and obligations or of any criminal charge against him, everyone is entitled
to a fair ... hearing ...

3. Everyone charged with a criminal offence has
the following minimum rights: ...

(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him; ...”

A. Absence of an official record of the Court
of Appeal's hearing

The applicant alleged that Article 25 of the
Code of Criminal Procedure, which requires an official record to be
drawn up of hearings in camera, had been disregarded by the Court of Appeal. From
this it followed, in his submission, that the prolongation of his placement
at the Government's disposal with confinement to a secure institution
had not been ordered “in accordance with a procedure prescribed by
law”, as required by Article 5 § 1 of the Convention.

The Government admitted that it was the normal
practice of the Arnhem Court of Appeal not to draw up a separate official
record in cases of this nature, thus saving time and money. Instead,
a summary of what was said by the person concerned or his counsel was
incorporated in the document containing the decision. The Government
submitted that this was sufficient to satisfy domestic law. In any event,
they argued, an official record in the form of a separate document would
have had no added value whatsoever for the applicant.

The applicant pointed to the terms of Article
25 of the Code of Criminal Procedure, paraphrased above. An official
record of a hearing was, in his submission, a record of what was said
and done during a hearing, and was therefore entirely different in nature
from a judicial decision which followed a hearing in time.

In the applicant's submission, the Code of Criminal
Procedure also recognised the difference in principle between decisions
and official records of hearings. He quoted a large number of domestic
legal provisions in support of this argument, as well as a number of
comments by learned authors and the drafting history of the legal provision
concerned.

The applicant cited three judgments of the Supreme
Court (Hoge
Raad). The first was a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964,
no. 291, in which a decision of a trial court was declared null and
void because the official record of the hearing at which it was delivered
was not contained in the case file, so that it could not be established
that delivery had taken place in accordance with the prescribed formal
requirements, including that of publicity. The Supreme Court accepted
that the judgment's delivery in public was noted in the judgment itself,
but that was not sufficient since, with regard to formalities to be
observed at hearings, the law had attributed evidentiary value only
to the official record. The two other judgments cited were those delivered
by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998
(Nederlandse
Jurisprudentie 1998, no. 438) in which decisions were declared
null and void on the ground that, there being no official record in
each case of the hearing in camera, it had to be assumed that no such hearing meeting
the appropriate formal requirements had in fact been held.

Finally, the applicant argued that the added
value of a separate official record of the hearing was its character
as a public record of everything that was actually discussed at the
hearing, perhaps including matters which did not make their way into
the eventual decision.

The Court considers, in the light of the parties'
submissions, that the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an examination
of the merits. The Court concludes therefore that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has been
established.

B. Failure to appoint a counter-expert

The applicant complained of the failure to appoint
an independent expert to assess his mental state. In his submission
the expert reports available to the domestic courts, having been prepared
by experts employed by the respondent Party and belonging to the institution
itself where he was forced to remain for compulsory treatment, could
not be accepted as satisfactory in this respect. He relied on Article 5
§§ 1 (e) and 4 and Article 6 § 3 (d) of the Convention.

1. Whether the domestic remedies have
been exhausted

The Government argued, in the first place, that
the Court of Appeal had been perfectly entitled to deny the applicant's
requests for the appointment of a counter-expert at the expense of the
State. If the applicant considered a second opinion to be in his interests,
he could have been expected to meet the concomitant expense out of his
own pocket.

In the second place, the Government pointed to
the possibility for the applicant to lodge a disciplinary complaint
against the court experts whom he considered to lack sufficient independence.
This would have provided him with an opportunity to have the experts'
independence and impartiality duly examined by an independent tribunal.

The applicant replied that he had fought the
prolongation of his placement at the Government's disposal before the
competent authorities; the final decision was that of the Court of Appeal,
against which no further appeal was possible. While it might be the
case that the applicant could have initiated disciplinary proceedings
against one or more of the court experts, this could not be considered
a remedy appropriate to his complaint before the Court. Disciplinary
proceedings were intended to maintain standards of quality within particular
professions and might, at most, result in the imposition of sanctions
on the person concerned; they did not preclude the use of a report by
such person to inform a court decision.

The Court recalls that Article 35 § 1 of the
Convention, in relevant part, provides as follows:

“The Court may only deal with the matter after
all domestic remedies have been exhausted ...”

“The Court recalls that the only remedies which
an applicant is required to exhaust are those that relate to the breaches
alleged and which are at the same time available and sufficient. The
existence of such remedies must be sufficiently certain not only in
theory but also in practice, failing which they will lack the requisite
accessibility and effectiveness; it falls to the respondent State to
establish that these various conditions are satisfied (...). Moreover,
an applicant who has exhausted a remedy that is apparently effective
and sufficient cannot be required also to have tried others that were
available but probably no more likely to be successful (...).”

In the present case, the Court notes that the
applicant has stated in his application that he lacks the means to pay
for a second opinion himself. The Government have not addressed this
point in their observations. In the circumstances, the Court is not
disposed to dismiss it out of hand.

For the remainder, the Court finds that the procedure
followed by the applicant provided a remedy that he was entitled to
consider “apparently effective”; consequently, the applicant cannot
now be faulted for not having staked his case on any other.

It follows that this complaint cannot be declared
inadmissible on the ground that the applicant has failed to exhaust
the available effective domestic remedies.

2. The applicable Convention provision

The applicant bases this complaint on Articles
5 and 6.

The Court points out that Article 6 applies to
the determination of “civil rights and obligations” or of a “criminal
charge”. Paragraph 3 of that Article, on which the applicant relies
in particular, contains guarantees applying to cases of the latter kind
– those in which a “criminal charge” is determined.

In the present case, the determination of the
“criminal charge” against the applicant resulted from the criminal
proceedings against him, which came to an end when the Supreme Court
delivered its judgment on 1 October 1996.

The public prosecutor's subsequent periodic requests
for orders prolonging the applicant's placement at the Government's
disposal with confinement in a secure institution initiated separate
proceedings unrelated, as such, to the original criminal charge. The
question to be considered in these proceedings was, and is, whether
the applicant's mental state requires him to be detained for an additional
period in order to ensure the safety of persons – especially other
persons – or goods.

Admittedly, deprivation of liberty can fall within
the ambit of both Article 5 § 1 (a) and Article 5 § 1 (e) but no problem
arises in the present case as regards compliance with the requirements
of sub-paragraph a (see X v. the United Kingdom, judgment of 5 November 1981, Series A
no. 46, pp. 17-18, § 39).

It is clear, therefore, that the guarantees contained
in Article 6 § 3 of the Convention cannot apply directly to proceedings
such as those here at issue.

The provision relevant to the applicant's detention,
for the purposes of the Court's examination of the case, is thus Article
5 § 1 (e). The Court will therefore consider the applicant's complaint
about the rejection of his request to appoint a counter-expert under
Article 5 § 4 taken together with that provision.

3. Whether the complaint is manifestly
ill-founded

a. Arguments before the Court

The Government argued that no violation of Article
5 §§ 1 (e) and 4 could be found in any case. Referring to the Court's
case-law under Article 6 §§ 1 and 3 (d) of the Convention by analogy,
and particular to the Bönisch v. Austria judgment of 6 May 1985, Series A no. 92, pp. 14-15,
§ 29, they proceeded on the assumption that the case should be considered
from the angle of “fairness” of the proceedings as a whole.

The Government acknowledged that the experts
who examined the applicant were in their pay, but stated that they worked
in complete independence. Again citing Bönisch, this time a contrario (loc. cit., pp. 15-16, §§ 31-33), they expressed the view
that the neutrality of these experts was beyond dispute. They further
pointed to the fact that expert witnesses were put on oath when they
testified in that capacity, in order to stress their independence.

The applicant argued that these particular experts
were not only State employees but also lacked guarantees of independence.
Thus, their appointment and careers depended on hierarchical superiors
within the civil service, and they could be subjected to discipline
and dismissal if they incurred their superiors' disapproval.

The lack of independence of the experts in the
applicant's case was given additional poignancy by the fact of their
being attached to the institution where the applicant was detained;
it could be expected that they would feel bound to justify that institution's
treatment of the applicant.

In addition, in this particular case the importance
of an independent expert opinion was shown by the report submitted in
1995, in the course of the proceedings which led to the applicant's
conviction. This report, by Dr E., an independent expert conversant with
the applicant's culture, had made it clear that the applicant's crime
could be explained in cultural terms rather than in terms of psychopathology.
However, the 's-Hertogenbosch Court of Appeal had ignored this report
without giving reasons.

Admittedly, the possibility existed for a person
placed at the Government's disposal to commission an expert report at
his own expense, but this possibility was illusory given that persons
in such a position could not generate sufficient income to meet the
high cost involved.

b. Applicable principles

The principles which emerge from the Court's
case-law and which the Court considers applicable to cases such as the
present are the following:

a) Article 5 § 4 provides the right to an individual
deprived of his liberty to have the lawfulness of that detention reviewed
by a court in the light, not only of domestic law requirements, but
also of the text of the Convention, the general principles embodied
therein and the aim of the restrictions permitted by paragraph 1: the
scheme of Article 5 implies that the notion of “lawfulness” should
have the same significance in paragraphs 1 (e) and 4 in relation to
the same deprivation of liberty (see, inter alia, the above-cited X v. the United Kingdom, p. 25, § 57, and E. v. Norway, judgment of 29 August 1990, Series A no. 181-A, pp. 21-22,
§ 50).

b) An individual cannot be considered to be of
“unsound mind” and deprived of his liberty unless the following
three minimum conditions are satisfied: firstly, he must reliably be
shown to be of unsound mind; secondly, the mental disorder must be of
a kind or degree warranting compulsory confinement; thirdly, and of
sole relevance to the case at issue, the validity of continued confinement
depends upon the persistence of such a disorder (see, among other authorities, Johnson v. the
United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII, p. 2409, § 60).

c) Article 5 § 1 (e) obviously cannot be taken
as permitting the detention of a person simply because his views or
behaviour deviate from the norms prevailing in a particular society
(see, as a recent authority, Herz v. Germany,no. 44672/98, § 47, 12 June 2003).

d) Article 5 § 4 requires that the procedure
followed have a judicial character and give to the individual concerned
guarantees appropriate to the kind of deprivation of liberty in question;
in order to determine whether a proceeding provides adequate guarantees,
regard must be had to the particular nature of the circumstances in
which such proceeding takes place (see Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237-A,
p. 11, § 22).

e) It is for the authorities to prove that an
individual satisfies the conditions for compulsory detention rather
than the converse (Hutchison Reid v. the United Kingdom,no. 50272/99, § 71, ECHR 2003-IV).

c. Application of the above principles

In so far as the applicant asserts that his condition
did not necessitate psychiatric confinement, the Court reiterates that
in deciding whether an individual should be detained as a “person
of unsound mind”, the national authorities are to be recognised as
having a certain discretion, since it is in the first place for the
national authorities to evaluate the evidence before them in a particular
case (see, as a recent authority, Rakevich v. Russia, no. 58973/00, § 30, 28 October 2003).

Turning to the facts of the case, the Court notes
that the prolongation of the applicant's placement at the Government's
disposal with confinement in a secure institution was sought by the
public prosecutor. The Court of Appeal, when called upon to decide on
this request, had before it, in addition to the reports which informed
the original placement order, a report prepared by the institution in
which the applicant was detained and the oral evidence of a psychologist
who was a member of that institution's staff. The Court of Appeal refused
to order an examination of the applicant at public expense by a counter-expert
chosen by him, who would have been able to explain the applicant's behaviour
in terms of his cultural background rather than in terms of psychopathology.

The experts who reported on the applicant's mental
state were in the pay of the State and attached to the institution in
which the applicant was being held. It may well be that the applicant
perceived them subjectively as instruments of his continued detention.
It does not follow, however, that they should be considered “opponents”
comparable from the applicant's perspective to the public prosecutor.

In the proceedings here at issue, these experts
were called upon to provide expert information going to the question
whether the applicant's “unsoundness of mind” still justified keeping
the applicant deprived of his liberty. The fact that their information
was such as to lead the Court of Appeal to answer this question in the
affirmative does not, in itself, justify doubts as to their objectivity.

Nor does the fact that the experts were in the
pay of the Government, since they themselves could neither initiate
nor determine proceedings aimed at keeping the applicant confined. The
Court also attaches a certain significance to the fact, stated by the
Government in a different context but not per se disputed by the applicant (see above), that a demonstrable
lack of integrity on the part of the experts in the performance of their
duties makes them liable to disciplinary sanctions.

As to the applicant's request for the appointment
of a counter-expert conversant with his particular cultural background,
the Court notes that the report of precisely such an expert was submitted
for examination to the court already in the criminal proceedings which
led to his being placed at the Government's disposal. It appears that,
for whatever reason, arguments based on this counter-expert's report
were not then considered. However, the applicant was not prevented from
restating such arguments in the proceedings here at issue. In the circumstances,
therefore, the Court cannot consider arbitrary or unreasonable the refusal
to order a further examination of the applicant at public expense, the
result of which would, at best, be largely identical to information
already available.

It follows that this complaint is manifestly
ill-founded and should be rejected pursuant to Article 35 §§ 3 and
4 of the Convention.

For these reasons, the Court, by a majority,

Declares admissible,without prejudging the merits, the applicant's complaint that
no separate official record was made of the Court of Appeal's hearing
of 9 April 2001;